EXHIBIT 1.1
12,000,000 SHARES
STAPLES, INC.
COMMON STOCK, PAR VALUE $.0006 PER SHARE
UNDERWRITING AGREEMENT
May 29, 2003
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, XXXXX & CO.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
1. INTRODUCTORY. Staples, Inc., a Delaware corporation ("COMPANY"),
proposes to issue and sell an aggregate of 12,000,000 shares ("FIRM SHARES") of
Common Stock, par value $.0006 per share ("SHARES"), registered under the
registration statement referred to in Section 2(a), and also proposes to sell to
the Underwriters, at the option of the Underwriters, an aggregate of not more
than 1,800,000 of its Shares ("OPTIONAL SHARES") as set forth below. The Firm
Shares and the Optional Shares are herein collectively called the "OFFERED
SHARES". It is understood that, subject to the conditions hereinafter stated,
the Offered Shares will be sold to the several Underwriters named in Schedule A
hereto ("UNDERWRITERS"). The Company agrees with the several Underwriters as
follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-101116), including a
prospectus, relating to the Offered Shares has been filed with the
Securities and Exchange Commission ("COMMISSION") and has become
effective; no stop order suspending the effectiveness of the
Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the Company's knowledge, threatened
by the Commission. Such registration statement, including the Company's
Annual Report on Form 10-K for the fiscal year ended February 1, 2003
and any other subsequently filed documents that are incorporated by
reference into such registration statement (such Annual Report and
subsequently filed documents are collectively referred to herein as the
"EXCHANGE ACT REPORTS"), as amended on the date hereof, is hereinafter
referred to as the "REGISTRATION STATEMENT", and the prospectus
included in such Registration Statement, as supplemented to reflect the
terms of the Offered Shares, as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("RULE 424(b)") under
the Securities Act of 1933, as amended ("ACT"), including all material
incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed
in reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating
to the Offered Shares, such registration statement conformed in all
material respects to the requirements of the Act and the rules and
regulations of the Commission ("RULES AND REGULATIONS") and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and on the date hereof, the
Registration Statement and the Prospectus conform in all material
respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or
necessary to make the statements therein not misleading, except that
the foregoing does not apply to statements in or omissions from any of
such documents based upon written information furnished to the Company
by any Underwriter, if any, specifically for use therein. The Exchange
Act Reports, when they were filed or when they will be filed with the
Commission, did conform and will conform in all material respects to
the applicable requirements of the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and the applicable rules and regulations
of the Commission thereunder. The Exchange Act Reports did not and will
not, as of their respective dates, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such
documents were or will be so filed, as applicable, not misleading.
(c) Each of the Company and each Significant Subsidiary of the
Company (as defined in Rule 1-02 of Regulation S-X) that is a
corporation has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus, and has been
duly qualified as a foreign corporation for the transaction of business
and is in good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so as to
require such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction; each Significant Subsidiary of the Company that is a
limited liability company has been duly formed and is validly existing
as a limited liability company under the laws of the State of Delaware,
with the power and authority as a limited liability company to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign limited liability company for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each other subsidiary of the
Company has been duly incorporated or formed and is validly existing as
a corporation or limited liability company, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
formation, or is subject to no material liability or disability by
reason of the failure to be in good standing in any such jurisdiction.
(d) The Offered Shares and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares
of capital stock of the Company are, and, when the Offered Shares have
been delivered and paid for in accordance with this Agreement on the
applicable Closing Date (as defined below), such Offered Shares will
be, validly issued, fully paid and nonassessable and will conform in
all material respects to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Offered Shares.
(e) All of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are
fully paid and non-assessable and (except for directors' qualifying
shares and except as set forth on Schedule 2(e) hereto) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) Neither the Company nor any of its subsidiaries (y) is in
violation of its Certificate of Incorporation or By-laws, or (z) other
than any defaults that singly or in the aggregate will not have a
material adverse effect on the financial position, stockholders' equity
or results of
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operations of the Company and its subsidiaries, is in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound.
(g) There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require
the Company to file a registration statement under the Act with respect
to any securities of the Company owned or to be owned by such person or
to require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act.
(h) On April 24, 2003, the Company filed a "Notification Form:
Listing of Additional Shares" with the Nasdaq Stock Market ("NASDAQ")
with respect to the proposed listing and issuance of the Firm Shares
and the Optional Shares. On April 30, 2003, the Company confirmed with
the NASDAQ that an additional 13,800,000 shares of common stock,
representing the Firm Shares and the Optional Shares, have been listed
on the Company's "NASDAQ Stock Market Listing of Additional Shares
Transaction Summary Report".
(i) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Shares by the
Company, except such as will have been obtained and made under the Act
prior to the First Closing Date and such as may be required under state
securities laws.
(j) The execution, delivery and performance of this Agreement, the
issue and sale by the Company of the Offered Shares and the compliance
by the Company with all of the provisions of this Agreement and the
consummation by the Company of the transactions herein contemplated
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, sale/leaseback agreement, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its subsidiaries is subject nor will such actions
result in any violation of the provisions of the Restated Certificate
of Incorporation or By-laws of the Company or the Certificate of
Incorporation or By-laws of each of the Significant Subsidiaries of the
Company that is a corporation or the Certificate of Formation or
Limited Liability Company Agreement of each of the Significant
Subsidiaries of the Company that is a limited liability company, or any
order of any United States court or governmental agency or body having
jurisdiction over the Company or any of its material domestic
subsidiaries specifically naming the Company or any of the Significant
Subsidiaries of the Company or any statute, rule or regulation; and the
Company has full authority to authorize, issue and sell the Offered
Shares as contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company., subject as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium, or other
laws affecting creditors' rights generally, from time to time in effect
and to general principles of equity.
(l) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or
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such as do not materially affect the value of such properties in the
aggregate and do not interfere with the use made and proposed to be
made of such properties in the aggregate by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material to the Company and its subsidiaries taken as a whole.
(m) No material labor dispute with the employees of the Company or
any subsidiary exists or, to the knowledge of the Company, is imminent.
(n) The Company and its subsidiaries own, possess or can acquire
on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information
and other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business in all material respects now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that are
reasonably likely, individually or in the aggregate, to have a material
adverse effect on the current or future consolidated financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries.
(o) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries (i) is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL LAWS"), (ii) owns or operates
any real property contaminated with any substance that is subject to
any environmental laws, (iii) is liable for any off-site disposal or
contamination pursuant to any environmental laws, or (iv) is subject to
any claim relating to any environmental laws, which, in any case of
(i)-(iv) above, are reasonably likely, individually or in the
aggregate, to have a material adverse effect on the current or future
consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and the Company is not
aware of any pending investigation which might lead to such a claim.
(q) Except as disclosed in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject which are reasonably likely,
individually or in the aggregate, to have a material adverse effect on
the current or future consolidated financial position, stockholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(r) The audited consolidated financial statements of the Company
incorporated by reference in the Prospectus present fairly in all
material respects the financial position of the Company at their
respective dates, and the results of operations of the Company for the
periods covered thereby; the audited consolidated financial statements
of the Company incorporated by reference in the Prospectus have been
(except insofar as may be expressly stated therein) prepared in
accordance with accounting principles generally accepted in the United
States in force at the time of preparation of such financial statements
and which have been consistently applied.
(s) Neither the Company nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included in
the Company's Annual Report on Form 10-K any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not
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covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of
which information is given in the Prospectus, there has not been any
material change in the capital stock of the Company (other than
pursuant to the Company's stock award, option or purchase plans or
other employee or director benefit plans) or material increase in
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company and its subsidiaries otherwise than as set
forth or contemplated in the Prospectus; and, except as disclosed in or
contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(t) The Company is not and, after giving effect to the offering
and sale of the Offered Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT").
(u) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Exchange Act and the rules and
regulations of the Commission thereunder.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SHARES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $18.3233 per share, the respective
number of shares of Firm Shares set forth opposite the names of the Underwriters
in Schedule A hereto. The Underwriters agree to reimburse the Company for an
amount of up to $408,024 for expenses incurred by the Company in connection with
the offering of the Offered Shares.
The Company will deliver the Firm Shares to the Underwriters for the
accounts of the Underwriters, against payment of the purchase price in Federal
(same day) funds by wire transfer to an account at a bank acceptable to the
Underwriters drawn to the order of the Company at the office of Xxxxxxxx &
Xxxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New York
time, on June 4, 2003, or at such other time not later than seven full business
days thereafter as the Underwriters and the Company determine, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Firm Shares sold
pursuant to the offering. The certificates for the Firm Shares so to be
delivered will be in definitive form, in such denominations and registered in
such names as the Underwriters request at least two business days prior to the
First Closing Date and will be made available for checking and packaging at the
office of Xxxxxxxx & Xxxxxxxx LLP at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from the Underwriters given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Shares at the purchase price to be paid for the Firm Shares. The Company agrees
to sell to the Underwriters the number of shares of Optional Shares specified in
such notice and the Underwriters agree, severally and not jointly, to purchase
such Optional Shares. Such Optional Shares shall be purchased for the account of
each Underwriter in the same proportion as the number of shares of Firm Shares
set forth opposite such Underwriter's name bears to the total number of shares
of Firm Shares (subject to adjustment by the Underwriters to eliminate
fractions) and may be purchased by the Underwriters for the sole purpose of
covering sales of shares in excess of the number of Firm Shares. No
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Optional Shares shall be sold or delivered unless the Firm Shares previously
have been, or simultaneously are, sold and delivered. The right to purchase the
Optional Shares or any portion thereof may be exercised from time to time and to
the extent not previously exercised may be surrendered and terminated at any
time upon notice by the Underwriters to the Company.
Each time for the delivery of and payment for the Optional Shares,
being herein referred to an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Underwriters but shall be not later than five full business days after written
notice of election to purchase Optional Shares is given. The Company will
deliver the Optional Shares being purchased on each Optional Closing Date to the
Underwriters for the accounts of the several Underwriters at the office of
Xxxxxxxx & Xxxxxxxx LLP against payment of the purchase price therefor in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Underwriters drawn to the order of the
Company, at the above office of Xxxxxxxx & Xxxxxxxx LLP. The certificates for
the Optional Shares being purchased on each Optional Closing Date will be in
definitive form, in such denominations and registered in such names as the
Underwriters request upon reasonable notice prior to such Optional Closing Date,
and will be made available for checking and packaging at the above office of
Xxxxxxxx & Xxxxxxxx LLP at a reasonable time in advance of such Optional Closing
Date.
4. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the
several Underwriters that it will furnish to counsel for the Underwriters one
signed copy of the registration statement relating to the Offered Shares,
including all exhibits, in the form it became effective and of all amendments
thereto and that, in connection with each offering of Offered Shares:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable
and if consented to by the Underwriters, subparagraph (5)) not later
than the second business day following the execution and delivery of
this Agreement.
(b) The Company will advise the Underwriters promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will afford the Underwriters a reasonable opportunity to
comment on any such proposed amendment or supplement; and the Company
will also advise the Underwriters promptly of the filing of any such
amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the Registration Statement or of
any part thereof and will use its best efforts to prevent the issuance
of any such stop order and to obtain as soon as possible its lifting,
if issued.
(c) If, at any time when a prospectus relating to the Offered
Shares is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would contain an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company promptly will notify the Underwriters of such event and
will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither the
Underwriters' consent to, nor the Underwriters' delivery of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months, after the
date hereof, the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to
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the Offered Shares, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become
effective prior to the date hereof and (iii) the date of the Company's
most recent Annual Report on Form 10-K filed with the Commission prior
to the date hereof, which will satisfy the provisions of Section 11(a)
of the Act.
(e) The Company will furnish to the Underwriters copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the
Prospectus and all amendments and supplements to such documents, in
each case as soon as available and in such quantities as the
Underwriters reasonably request. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Shares for sale under the laws of such jurisdictions as the
Underwriters designate and will continue such qualifications in effect
so long as required for the distribution of the Offered Shares;
provided that the Company shall not be required, in connection
therewith, to qualify as a foreign corporation or to file a general
consent to service of process in any jurisdiction .
(g) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any
additional shares of its Common Stock or securities convertible into or
exchangeable or exercisable for any shares of its Common Stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Underwriters for the 90-day period beginning at the time of execution
of this Agreement. The foregoing sentence shall not apply to (i) the
Offered Shares to be sold hereunder, (ii) the issuance by the Company
of shares of its Common Stock upon the exercise of an option or warrant
or the conversion of a security outstanding on the date hereof of which
the Underwriters have been advised in writing, issuances pursuant to
the Company's employee stock purchase plan or the issuance by the
Company of shares of restricted stock, options or warrants to employees
or directors of the Company pursuant to the Company's stock-based
incentive compensation plans existing on the date hereof, or (iii) the
issuance of shares of Common Stock under the Company's 401(k) plan and
deferred compensation plan.][GS and CSFB: please confirm whether the
bracketed language is acceptable.
5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Shares on the First
Closing Date and the Optional Shares to be purchased on each Optional Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) On the date hereof, Ernst & Young LLP shall have furnished
to the Underwriters a letter, dated the date hereof, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type customarily included in accountants "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Prospectus or
incorporated by reference therein.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the
Registration Statement or of any part thereof shall have been issued
and no proceedings for that purpose shall have been instituted or, to
the knowledge of the Company or any Underwriter, shall be contemplated
by the Commission.
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(c) There shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the
judgment of a majority in interest of the Underwriters, is material and
adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Shares; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical
rating organization" (as defined for purposes of Rule 436(g) under the
Act), or any public announcement that any such organization has under
surveillance or review its rating of any debt securities of the Company
(other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political
or economic conditions or currency exchange rates or exchange controls
as would, in the judgment of a majority in interest of the
Underwriters, be likely to prejudice materially the success of the
proposed issue, sale or disposition of the Offered Shares, whether in
the primary market or in respect of dealings in the secondary market;
(iv) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange or Nasdaq, or any
setting of minimum prices for trading on such exchange, or any
suspension of trading of any securities of the Company on any exchange
or in the over-the-counter market; (v) any banking moratorium declared
by U.S. Federal or New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States or
(vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters, the
effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency makes it impractical or inadvisable to proceed
with completion of the public offering or the sale of and payment for
the Offered Shares.
(d) Wolf, Greenfield & Sacks, P.C., special counsel for the
Company, shall have furnished to the Underwriters its written opinion,
dated such Closing Date, in form and substance satisfactory to the
Underwriters, to the effect that the name "Staples" is a trademark of
Staples The Office Superstore, Inc., a wholly owned subsidiary of the
Company, which has been duly registered with the U.S. Patent and
Trademark Office.
(e) Xxxx and Xxxx LLP, counsel for the Company, shall have
furnished to the Underwriters its written opinion, dated such Closing
Date, in form and substance satisfactory to the Underwriters, to the
effect that:
(i) Each of the Company and each of the following
subsidiaries of the Company: (A) Staples the Office Superstore,
Inc., (B) Staples the Office Superstore East, Inc., (C) Staples
Contract & Commercial, Inc., (D) Hackensack Funding, LLC and (E)
Rochester Capital, LLC (each a "COVERED SUBSIDIARY") that is a
corporation has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus;
(ii) Each Covered Subsidiary of the Company that is a
limited liability company has been duly formed and is validly
existing as a limited liability company in good standing under the
laws of the State of Delaware, with limited liability power and
authority to own its properties and conduct its business as
described in the Prospectus;
(iii) This Agreement has been duly authorized,
executed and delivered by the Company;
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(iv) The Offered Shares to be delivered on such
Closing Date have been duly authorized by the Company and, when
delivered and paid for in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable
and conform in all material respects to the description thereof in
the Prospectus; and the stockholders of the Company have no
pre-emptive rights with respect to the Offered Shares under the
Restated Certificate of Incorporation or the By-laws of the
Company;
(v) The execution, delivery and performance of this
Agreement, the issue and sale by the Company of the Offered Shares
and the compliance by the Company with all of the provisions of
this Agreement and the consummation by the Company of the
transactions herein contemplated will not conflict with or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of
trust, sale/leaseback agreement, loan agreement or other agreement
or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of
its subsidiaries is subject and which is filed as an exhibit to
any Exchange Act Report nor will such actions result in any
violation of the provisions of the Restated Certificate of
Incorporation or By-laws of the Company, or any order of any
United States court or governmental agency or body having
jurisdiction over the Company or any of its material domestic
subsidiaries specifically naming the Company or any Covered
Subsidiary known to such counsel or any United States federal or
Massachusetts state statute, rule or regulation (except that such
opinions shall not extend to compliance with the anti-fraud
provisions of federal or state securities laws);
(vi) No consent, approval, authorization, order,
registration or qualification of or with any United States federal
governmental agency or body is required for the issue and sale of
the Offered Shares or the consummation by the Company of the
transactions contemplated by this Agreement, except (A) the
registration under the Act of the Offered Shares, and (B) such
consents, approvals, authorizations, registrations or
qualifications as may be required under (x) state securities or
Blue Sky laws or (y) the rules and regulations of the National
Association of Securities Dealers, Inc. in connection with the
purchase and distribution of the Offered Shares by the
Underwriters;
(vii) The statements set forth in the Prospectus
under (A) the captions "Description of Common Stock and Preferred
Stock Purchase Rights", and "Plan of Distribution", insofar as
they purport to describe the terms of the Offered Shares and the
provisions of the laws and documents referred to therein, and (B)
the caption "Underwriting", insofar as they purport to describe
the provisions of this Agreement and the lockup agreements
referred to therein and the provisions of the Federal laws of the
United States referred to therein, in each case, accurately
summarize such matters in all material respects;
(viii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act; and
(ix) The Exchange Act Reports (other than the
financial statements, financial data and related schedules
therein, as to which such counsel need express no opinion), when
they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and
the rules and regulations thereunder; although they do not assume
any responsibility for the accuracy, completeness or fairness
9
of the statements contained in the Prospectus or the Exchange Act
Reports, no facts have come to their attention that have caused
them to believe that (x) the Prospectus (other than the financial
statements, financial data and related schedules therein, as to
which such counsel need express no view) contained as of its date
or contains as of the Closing Date an untrue statement of a
material fact or omitted or omits, as the case may be, to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading or (y) the Exchange Act Reports (other than the
financial statements, financial data and related schedules
therein, as to which such counsel need express no view), when they
were so filed and on such Closing Date, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made when such documents
were so filed, not misleading.
(f) The Underwriters shall have received an opinion, dated
such Closing Date, of Xxxxxxxx & Xxxxxxxx LLP, counsel to the
Underwriters, with respect to the incorporation of the Company, the
validity of the Offered Shares delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Underwriters may reasonably require, and the Company shall have
furnished to such counsel such papers and information as they
reasonably request for the purpose of enabling them to pass upon such
matters. In rendering such opinion, Xxxxxxxx & Xxxxxxxx LLP may rely as
to all matters governed by Massachusetts law upon the opinion of Xxxx &
Xxxx LLP referred to above.
(g) The Underwriters shall have received a certificate, dated
such Closing Date, of the President or any Executive Vice President and
a principal financial or accounting officer of the Company in which
such officers, after reasonable investigation, shall state to the
effect set forth in subsection (c) and further state that the
representations and warranties of the Company in this Agreement are
true and correct as of such Closing Date; the Company has complied with
all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to
the best knowledge of such officers, are contemplated by the Commission
and, subsequent to the date of the most recent financial statements in
the Prospectus, there has been no change, nor any development or event
involving a prospective adverse change, in the condition (financial or
other), business, properties or results of operations of the Company
and its subsidiaries which are reasonably likely, individually or in
the aggregate, to have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries except as set forth
in or contemplated by the Prospectus.
(h) Xxxx X. XxxXxxxxxx, Esq., Executive Vice President,
General Counsel and Secretary of the Company, shall have furnished to
the Underwriters his written opinion, dated such Closing Date, to the
effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good
standing under the laws of each jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified or to be in
good standing in any such jurisdiction;
(ii) All of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are
fully paid and non-assessable and, except for directors'
10
qualifying shares, are owned directly or indirectly by the
Company, and were issued free and clear of all liens,
encumbrances, equities or claims;
(iii) Each Significant Subsidiary (other than a
non-U.S. Significant Subsidiary) of the Company that is a
corporation has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction
of incorporation; and all of the issued shares of capital stock of
each such Significant Subsidiary (other than a non-U.S.
Significant Subsidiary) have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for
directors' qualifying shares) are owned directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities
or claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in
respect of matters of fact upon certificates of officers of the
Company or its Significant Subsidiary (other than a non-U.S.
Significant Subsidiary), provided that such counsel shall state
that they believe that both the Underwriters and they are
justified in relying upon such opinions and certificates);
(iv) Each subsidiary of the Company (other than a
U.S. Significant Subsidiary) that is a corporation has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, or
is subject to no material liability or disability by reason of the
failure to be in good standing in any such jurisdiction; and all
of the issued shares of capital stock of each such subsidiary
(other than a U.S. Significant Subsidiary) have been duly and
validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, free and clear of all material
liens, encumbrances, equities or claims (such counsel being
entitled to rely in respect of the opinion in this clause upon
opinions of local counsel and in respect of matters of fact upon
certificates of officers of the Company or its subsidiaries (other
than U.S. Significant Subsidiaries), provided that such counsel
shall state that they believe that both the Underwriters and they
are justified in relying upon such opinions and certificates);
(v) Each Significant Subsidiary of the Company (other
than a non-U.S. Significant Subsidiary) that is a limited
liability company has been duly formed and is validly existing as
a limited liability company in good standing under the laws of its
jurisdiction of formation; and all of the issued membership
interests of each such Significant Subsidiary (other than a
non-U.S. Significant Subsidiary) have been duly and validly
authorized and issued, are fully paid and non-assessable, are
owned directly or indirectly by the Company (except as set forth
on Schedule B attached hereto), free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to
rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates
of officers of the Company or its Significant Subsidiaries (other
than non-U.S. Significant Subsidiaries), provided that such
counsel shall state that they believe that both the Underwriters
and they are justified in relying upon such opinions and
certificates);
(vi) Each subsidiary of the Company (other than a
U.S. Significant Subsidiary) that is a limited liability company
has been duly formed and is validly existing as a limited
liability company in good standing under the laws of its
jurisdiction of formation, or is subject to no material liability
or disability by reason of the failure to be in good standing in
any such jurisdiction; and all of the issued membership interests
of each such subsidiary (other than a U.S. Significant Subsidiary)
have been duly and validly authorized and issued, are fully paid
and non-assessable, are owned directly or indirectly
11
by the Company (other than interests owned by unrelated third
parties representing in the aggregate less than one percent of the
outstanding membership interest in any such subsidiary), free and
clear of all material liens, encumbrances, equities or claims
(such counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or
its subsidiaries (other than U.S. Significant Subsidiaries),
provided that such counsel shall state that they believe that both
the Underwriters and they are justified in relying upon such
opinions and certificates);
(vii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which is
reasonably likely, individually or in the aggregate, to have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of operations
of the Company and its subsidiaries; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(viii) The Exchange Act Reports (other than the
financial statements and related schedules and financial data
derived from accounting records included therein, as to which such
counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder; and
(ix) Although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Prospectus, no facts have come to the
attention of such counsel that would cause such counsel to believe
that (x) the Prospectus and any further amendments or supplements
thereto made by the Company prior to the Closing Date (other than
the financial statements and related schedules and financial data
derived from accounting records included therein, as to which such
counsel need express no view) contained as of its date or contains
as of the Closing Date an untrue statement of a material fact or
omitted or omits, as the case may be, to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (y)
the Exchange Act Reports (other than the financial statements and
related schedules and financial data derived from accounting
records included therein, as to which such counsel need express no
view) when they were so filed and on such Closing Date, contained
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when
such documents were so filed, not misleading.
(i) The Underwriters shall have received a letter, dated such
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
(j) On or prior to the date of this Agreement, the
Underwriters shall have received lockup letters, each substantially in
the form of Exhibit X-0, X-0, X-0, X-0, X-0 or A-6 hereto, as the case
may be, from each of the respective executive officers and directors of
the Company.
12
The Company will furnish the Underwriters with such conformed copies of such
opinions, certificates, letters and documents as the Underwriters reasonably
request. The Underwriters may in their sole discretion waive compliance with any
conditions to the obligations of the Underwriters hereunder, whether in respect
of any such Closing Date or otherwise.
6. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus or preliminary prospectus supplement, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that the Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with written information furnished to the Company by any Underwriter,
if any, specifically for use therein.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such
Underwriter, if any, specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the failure to notify the indemnifying party shall not relieve it
from any liability that it may have under subsection (a) or (b) above except to
the extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability
that it may have to an indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the
13
indemnified party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party unless such
settlement (i) includes an unconditional release of such indemnified party from
all liability on any claims that are the subject matter of such action and (ii)
does not include a statement as to, or an admission of, fault, culpability or a
failure to act by or behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Offered
Shares or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Offered Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. DEFAULT OF UNDERWRITERS. If any Underwriter or the Underwriters
default in their obligations to purchase Offered Shares under this Agreement and
the aggregate number of shares of Offered Shares that such defaulting
Underwriter or the Underwriters agreed but failed to purchase does not exceed
11% of the total shares of Offered Shares, the Underwriters may make
arrangements satisfactory to the Company for the purchase of such Offered Shares
by other persons, including any of the Underwriters, but if no such arrangements
are made by the Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments under this Agreement
(including the provisions of this Agreement), to purchase the Offered Shares
that such defaulting Underwriters agreed but failed to purchase. If any
Underwriter or the Underwriters so default and the aggregate number of shares of
Offered Shares with
14
respect to which such default or defaults occur exceeds 11% of the total number
of shares of Offered Shares and arrangements satisfactory to the Underwriters
and the Company for the purchase of such Offered Shares by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 8. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
8. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Shares. If this Agreement is terminated pursuant to
Section 7 or if for any reason the purchase of the Offered Shares by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 4 and the respective
obligations of the Company and the Underwriters pursuant to Section 6 shall
remain in effect. If the purchase of the Offered Shares by the Underwriters is
not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv), (v), (vi) or (vii) of Section 5(c), the Company will
reimburse the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Shares.
9. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Underwriters shall be
given to the Underwriters c/o Credit Suisse First Boston LLC, Eleven Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 (telefax: 212-325-4296); Attention: Xxxxxx
Xxxxxxx and c/x Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(telefax: 212-902-3000); Attention: Registration Department. Notices to the
Company shall be given to them c/o Staples, Inc., 000 Xxxxxxx Xxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 (telefax: 508-253-7805); Attention: General Counsel. .
10. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the Company and such Underwriters as are identified in this
Agreement and their respective successors and the officers and directors and
controlling persons referred to in Section 6, and no other person will have any
right or obligation hereunder.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated thereby.
15
If the foregoing is in accordance with the Underwriters' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
several Underwriters in accordance with its terms.
Very truly yours,
STAPLES, INC.
By /s/ XXXX X. XXXXXXX
--------------------------------------
Title Executive Vice President,
Chief Administrative Officer and
Chief Financial Officer
The foregoing Underwriting Agreement
is hereby confirmed and accepted as of
the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
XXXXXXX, SACHS & CO.
Acting on behalf of themselves
By CREDIT SUISSE FIRST BOSTON LLC
By /s/ XXXXXX X. XXXXXXX
--------------------------------
Managing Director
By XXXXXXX, SACHS & CO.
By /s/ XXXXXXX, XXXXX & CO.
--------------------------------
16
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
Credit Suisse First Boston LLC.............................. 6,000,000
Xxxxxxx, Sachs & Co. ....................................... 6,000,000
----------
Total................................................... 12,000,000
17
SCHEDULE B
Name of Subsidiary % of Ownership Not Owned by Staples, Inc.
Hackensack Funding LLC 0.0005%
18
EXHIBIT A-1
May __, 2003
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering (the "OFFERING") will be made that is
intended to result in an orderly market for the Common Stock, par value $.0006
per share (the "SECURITIES") of Staples, Inc., and any successor (by merger or
otherwise) thereto, (the "COMPANY"), the undersigned hereby agrees that from the
date hereof and until 90 days after the public offering date set forth on the
final prospectus supplement used to sell the Securities (the "PUBLIC OFFERING
DATE") pursuant to the Underwriting Agreement, to which you are or expect to
become parties, the undersigned will not (1) offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any shares of Securities
or securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities (collectively, a
"Transfer"), whether any such Transfer is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or (2) publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. In addition, the undersigned agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxxx, Sachs & Co., it
will not, during the period commencing on the date hereof and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
Agreement.
Notwithstanding the foregoing, the following Transfers shall not be subject to
this Agreement:
(i) any Transfer of Securities acquired by the undersigned in the
open market;
(ii) any Transfer of Securities to a family member or trust;
(iii) any Transfer that constitutes a bona fide gift of Securities;
(iv) any Transfer of Securities by the undersigned to the Company
solely to the extent necessary to provide the undersigned with proceeds from
such Transfer in an amount sufficient to pay any taxes incurred by the
undersigned as a result of the vesting in May 2003 of any shares of Performance
Accelerated Restricted Stock held by the undersigned; and
(v) beginning on the 31st day following the Public Offering Date, the
Transfer of up to an aggregate of 500,000 shares of Securities (subject to
adjustment for stock splits, stock dividends, combinations and similar
recapitalizations) collectively by certain executive officers of the Company
who have signed a lock-up agreement pursuant to the Underwriting Agreement in
connection with the Offering, the allocation of such shares among such executive
officers to be determined by the Company in its sole discretion, provided that
the undersigned shall not make any sales under this clause (v) without the
Company's prior consent;
provided, that, in the case of any Transfer described in clauses (ii) or (iii)
above, the transferee agrees to be bound in writing by the terms of this
Agreement.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
(SIGNATURE APPEARS ON FOLLOWING PAGE)
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before May 31, 2003.
Very truly yours,
---------------------------------------
[SIGNATURE OF NON-SELLING STOCKHOLDER]
---------------------------------------
[NAME OF NON-SELLING STOCKHOLDER]
EXHIBIT A-2
May __, 2003
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the Common Stock, par value $.0006 per share (the
"SECURITIES") of Staples, Inc., and any successor (by merger or otherwise)
thereto, (the "Company"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus supplement used to sell the Securities (the "PUBLIC OFFERING DATE")
pursuant to the Underwriting Agreement, to which you are or expect to become
parties, the undersigned will not (1) offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities (collectively, a
"Transfer"), whether any such Transfer is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or (2) publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. In addition, the undersigned agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxxx, Sachs & Co., it
will not, during the period commencing on the date hereof and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
Agreement.
Notwithstanding the foregoing, the following Transfers shall not be subject to
this Agreement:
(i) any Transfer of Securities acquired by the undersigned in the
open market;
(ii) any Transfer of Securities to a family member or trust;
(iii) any Transfer that constitutes a bona fide gift of Securities;
(iv) any Transfer of Securities by the undersigned to the Company
solely to the extent necessary to provide the undersigned with proceeds from
such Transfer in an amount sufficient to pay any taxes incurred by the
undersigned as a result of the vesting in May 2003 of any shares of Performance
Accelerated Restricted Stock held by the undersigned; and
(v) beginning on the 16th day following the Public Offering Date,
any Transfers of Securities by the undersigned pursuant to the undersigned's
Rule 10b5-1 Trading Plan in effect as of the date of this Agreement;
provided, that, in the case of any Transfer described in clauses (ii) or (iii)
above, the transferee agrees to be bound in writing by the terms of this
Agreement, except that Transfers of up to an aggregate of 100,000 shares of
Securities that constitute bona gifts or Eligible Transfers, are not subject to
this proviso. For purposes of this Agreement, an "Eligible Transfer" means any
Transfer of Securities by the undersigned to a trust such that, immediately
following such Transfer, the undersigned is not (and is not deemed to be) the
"beneficial owner" (as such term in defined in Rule 16a-1(a)(2) adopted by the
Securities and Exchange Commission under Section 16 of the Securities Exchange
Act of 1934, as amended) of such transferred Securities.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
(SIGNATURE APPEARS ON FOLLOWING PAGE)
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before May 31, 2003.
Very truly yours,
------------------------------
Xxxxxx X. Xxxxxxxx
EXHIBIT A-3
May __, 2003
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the Common Stock, par value $.0006 per share (the
"SECURITIES") of Staples, Inc., and any successor (by merger or otherwise)
thereto, (the "Company"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus supplement used to sell the Securities (the "PUBLIC OFFERING DATE")
pursuant to the Underwriting Agreement, to which you are or expect to become
parties, the undersigned will not (1) offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities (collectively, a
"Transfer"), whether any such Transfer is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or (2) publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. In addition, the undersigned agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxxx, Sachs & Co., it
will not, during the period commencing on the date hereof and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
Agreement.
Notwithstanding the foregoing, the following Transfers shall not be subject to
this Agreement:
(i) any Transfer of Securities acquired by the undersigned in the
open market;
(ii) any Transfer of Securities to a family member or trust;
(iii) any Transfer that constitutes a bona fide gift of
Securities; and
(iv) any Transfer of Securities by the undersigned to the Company
solely to the extent necessary to provide the undersigned with proceeds from
such Transfer in an amount sufficient to pay any taxes incurred by the
undersigned as a result of the vesting in May 2003 of any shares of Performance
Accelerated Restricted Stock held by the undersigned;
provided, that, in the case of any Transfer described in clauses (ii) or (iii)
above (other than Transfers of up to 10,000 shares of Securities in the
aggregate, which Transfers constitute bona fide gifts), the transferee agrees to
be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
(SIGNATURE APPEARS ON FOLLOWING PAGE)
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before May 31, 2003.
Very truly yours,
------------------------------
XXXXXX X. XXXXXXX
EXHIBIT A-4
May __, 2003
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the Common Stock, par value $.0006 per share (the
"SECURITIES") of Staples, Inc., and any successor (by merger or otherwise)
thereto, (the "Company"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus supplement used to sell the Securities (the "PUBLIC OFFERING DATE")
pursuant to the Underwriting Agreement, to which you are or expect to become
parties, the undersigned will not (1) offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities (collectively, a
"Transfer"), whether any such Transfer is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or (2) publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. In addition, the undersigned agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxxx, Sachs & Co., it
will not, during the period commencing on the date hereof and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
Agreement.
Notwithstanding the foregoing, the following Transfers shall not be subject to
this Agreement:
(i) any Transfer of Securities acquired by the undersigned in the
open market;
(ii) any Transfer of Securities to a family member or trust;
(iii) any Transfer that constitutes a bona fide gift of
Securities;
(iv) any Transfer of Securities by the undersigned to the
Company solely to the extent necessary to provide the undersigned with proceeds
from such Transfer in an amount sufficient to pay any taxes incurred by the
undersigned as a result of the vesting in May 2003 of any shares of Performance
Accelerated Restricted Stock held by the undersigned; and
(v) the Transfer of up to 17,500 shares of Securities by the
undersigned pursuant to the undersigned's Rule 10b5-1 Trading Plan in effect as
of the date of this Agreement;
provided, that, in the case of any Transfer described in clauses (ii) or (iii)
above, the transferee agrees to be bound in writing by the terms of this
Agreement.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
(SIGNATURE APPEARS ON FOLLOWING PAGE)
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before May 31, 2003.
Very truly yours,
------------------------------
Xxxx Xxxxxxxxx Xxxxxx
EXHIBIT A-5
May __, 2003
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the Common Stock, par value $.0006 per share (the
"SECURITIES") of Staples, Inc., and any successor (by merger or otherwise)
thereto, (the "Company"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus supplement used to sell the Securities (the "PUBLIC OFFERING DATE")
pursuant to the Underwriting Agreement, to which you are or expect to become
parties, the undersigned will not (1) offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities (collectively, a
"Transfer"), whether any such Transfer is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or (2) publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. In addition, the undersigned agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxxx, Sachs & Co., it
will not, during the period commencing on the date hereof and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
Agreement.
Notwithstanding the foregoing, the following Transfers shall not be subject to
this Agreement:
(i) any Transfer of Securities acquired by the undersigned in the
open market;
(ii) any Transfer of Securities to a family member or trust;
(iii) any Transfer that constitutes a bona fide gift of
Securities; and
(iv) any Transfer of Securities by the undersigned to the
Company solely to the extent necessary to provide the undersigned with proceeds
from such Transfer in an amount sufficient to pay any taxes incurred by the
undersigned as a result of the vesting in May 2003 of any shares of Performance
Accelerated Restricted Stock held by the undersigned;
provided, that, in the case of any Transfer described in clauses (ii) or (iii)
above (other than Transfers of up to 10,000 shares of Securities in the
aggregate, which Transfers constitute bona fide gifts), the transferee agrees to
be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
(SIGNATURE APPEARS ON FOLLOWING PAGE)
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before May 31, 2003.
Very truly yours,
------------------------------
XXXX X. XXXXXXX
EXHIBIT A-6
May __, 2003
Staples, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Credit Suisse First Boston LLC
Xxxxxxx, Xxxxx & Co.
c/o Credit Suisse First Boston LLC
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to the Underwriters to execute the Underwriting
Agreement, pursuant to which an offering will be made that is intended to result
in an orderly market for the Common Stock, par value $.0006 per share (the
"SECURITIES") of Staples, Inc., and any successor (by merger or otherwise)
thereto, (the "Company"), the undersigned hereby agrees that from the date
hereof and until 90 days after the public offering date set forth on the final
prospectus supplement used to sell the Securities (the "PUBLIC OFFERING DATE")
pursuant to the Underwriting Agreement, to which you are or expect to become
parties, the undersigned will not (1) offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities (collectively, a
"Transfer"), whether any such Transfer is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or (2) publicly
disclose the intention to make any such offer, sale, pledge or disposition, or
to enter into any such transaction, swap, hedge or other arrangement, without,
in each case, the prior written consent of Credit Suisse First Boston LLC and
Xxxxxxx, Xxxxx & Co. In addition, the undersigned agrees that, without the prior
written consent of Credit Suisse First Boston LLC and Xxxxxxx, Sachs & Co., it
will not, during the period commencing on the date hereof and ending 90 days
after the Public Offering Date, make any demand for or exercise any right with
respect to, the registration of any Securities or any security convertible into
or exercisable or exchangeable for the Securities. Any Securities received upon
exercise of options granted to the undersigned will also be subject to this
Agreement.
Notwithstanding the foregoing, the following Transfers shall not be subject to
this Agreement:
(i) any Transfer of Securities acquired by the undersigned in the
open market;
(ii) any Transfer of Securities to a family member or trust;
(iii) any Transfer that constitutes a bona fide gift of
Securities; and
(iv) any Transfer of Securities by the undersigned to the
Company solely to the extent necessary to provide the undersigned with proceeds
from such Transfer in an amount sufficient to pay any taxes incurred by the
undersigned as a result of the vesting in May 2003 of any shares of Performance
Accelerated Restricted Stock held by the undersigned;
provided, that, in the case of any Transfer described in clauses (ii) or (iii)
above, the transferee agrees to be bound in writing by the terms of this
Agreement.
In furtherance of the foregoing, the Company and its transfer
agent and registrar are hereby authorized to decline to make any transfer of
shares of Securities if such transfer would constitute a violation or breach of
this Agreement.
(SIGNATURE APPEARS ON FOLLOWING PAGE)
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. This
Agreement shall lapse and become null and void if the Public Offering Date shall
not have occurred on or before May 31, 2003.
Very truly yours,
--------------------------------------
[SIGNATURE OF NON-SELLING STOCKHOLDER]
--------------------------------------
[NAME OF NON-SELLING STOCKHOLDER]
